By Alex Bridges
Towns like Front Royal face an uphill battle if they want to get rid of derelict, rundown buildings.
But state legislators could change the laws that bar local governments from taking and improving properties, say attorneys for Front Royal and Warren County. Town Attorney Douglas Napier said Wednesday that he interprets state law as prohibiting local governments from taking private property for economic development purposes even if the owner agrees to the deal.
"In other words, if you can't acquire property by condemnation or eminent domain, you can't acquire it by voluntary purchase," Napier said. "So the bottom line is there's a big debate among local government attorneys whether localities can acquire property for any purpose other than where the locality can use it itself ... or is the government going to use the property to eliminate blight."
Town Council members have commented publicly about the presence of abandoned buildings, some of which appear rundown and derelict.
Napier and County Attorney Blair Mitchell continue to work together on ways the state may help clear up the law that they say ties the hands of local governments. Napier told Town Council on Monday about the attorneys' ongoing work that they hope might help Front Royal tackle blight.
A property must meet certain conditions for a local government to declare it blight. The property must either cause a public nuisance or threaten the public health and safety. Blight does not equal unsightly or eyesore.
"It's just discussions between the two sides as to what the county can [do to] help the town," Mitchell said. "Do we need to have any further legislation from the state? Is there existing legislation that we can work with, maybe change our ordinances or our programs, and it's something that both sides are looking into."
Warren County has a building department that enforces codes and safety regulations for structures. Front Royal does not have such a department.
Buildings set back far enough from public roads or sidewalks likely would not rise to the level of blighted if they did not pose a danger, officials said.
Mitchell recalled that he prosecuted a case, when he worked as the town's attorney, in which Front Royal sought to raze a derelict building that appeared on the verge of collapse. Instead, the judge ordered the owner to stabilize the building, Mitchell recalled.
Front Royal Planning and Zoning Department Director Jeremy Camp pointed out that the town does not have a program through which it could monitor properties that may pose such dangers. Camp noted that the town has abandoned properties, but none have been declared blighted.
Napier said he and Mitchell are looking at whether the legislature can clear up current law to allow local governments to take property if an owner is willing to sell the property in an "arms-length, voluntary transaction."
The law used to allow such transactions between property owner and local government if each party made the deal willingly, Napier said.
The U.S. Supreme Court ruled in a 2006 case, Kelo v. City of New London (Conn.), that a local government could take property through eminent domain for economic development. Governments already had the power to take property for public purposes, such as for road projects or other improvements. Property rights advocates decried the decision as overreaching.
Virginia state lawmakers responded by pushing legislation aimed at limiting local governments' ability to take property.
As Napier explained, the General Assembly passed a law that identifies the right to property as "fundamental," more so than that of the freedom of expression or religion.
The state law allows a local government to take private property either for public use or if the property is declared blighted or poses a danger to health, safety or welfare.
However, the General Assembly also passed a law that prohibits a local government from taking property for the purpose of financial gain or economic development, an increase in the tax base, or to create more jobs, Napier explained.
In its recent session, the General Assembly passed a law focused on the demolition of derelict, non-residential buildings. The law allows a government to demolish or remove a derelict, non-residential structure and to file a lien against the property for the cost of the demolition or removal. The law requires the local government to obtain written consent from the property owner before moving forward with demolition or removal. The law prohibits the government from taking a building designated as a historic landmark or if it is in a historic district.
Napier said the new law marginally relates to the attorneys' work, but they want the legislature to broaden the definition of public use.
Contact staff writer Alex Bridges at 540-465-5137 ext. 125, or firstname.lastname@example.org